1. The applicant, Mr Bronisław Woś, is a Polish
national who was born in 1928 and lives in Cielcza. The respondent Government
were represented by their Agents, Mr K. Drzewicki, and subsequently
by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

A. Historical background

2. The realities of the international situation
following the end of the Second World War prevented the Republic of
Poland from asserting any claims arising out of the persecution of its
citizens, including as forced labourers, by Nazi Germany.

3. In the period immediately following the Second
World War, Poland did not conclude a specific agreement with Germany
regarding the issue of reparations. It relied on the Potsdam Agreement
of 1 August 1945, concluded by the governments of the United States
of America, the United Kingdom of Great Britain and Northern Ireland
and the Union of Soviet Socialist Republics.

4. On 27 February 1953 the London Agreement on
German External Debts (the London Debt Agreement) was concluded by the
United States of America, Great Britain, France and the Soviet Union.
Under this Agreement, consideration of claims arising out of the Second
World War by countries that had been at war with, or occupied by, Germany,
and by nationals of such countries, against the Reich or agencies of
the Reich were deferred until the final settlement of the issue of reparations.

5. On 23 August 1953, the day after a similar
declaration by the government of the Soviet Union, the government of
Poland declared that it renounced any claims against Germany in respect
of war reparations as of 1 January 1954. In a declaration of 27 September
1969 made at the United Nations, the government of Poland clarified
that the renouncement of 1953 did not affect individual claims arising
out of unlawful acts.

6. It was only after the conclusion of the Treaty
on the Final Settlement with respect to Germany of 12 September 1990
(the so-called Two-Plus-Four Treaty) and the conclusion of two treaties
between the Federal Republic of Germany and the Republic of Poland in
19901
and 19912
that the issue of persons persecuted by the Nazi regime was addressed
in a bilateral agreement of 16 October 1991 (see paragraph 20 below).

B. The circumstances of the case

7. The facts of the case, as submitted by the
parties, may be summarised as follows.

The applicant was subjected to forced labour
during the Second World War on the territory of occupied Poland. In
February and March 1941 he worked on a German farm near Cielcza. Subsequently,
from April 1941 to April/May 1944, the applicant worked as a forest
labourer in Cielcza. Finally, he was relocated to an area situated 200
kilometres from his habitual place of residence, where he was required
to reinforce German defences from May/June 1944 to 26 January 1945.
In February 1944 the applicant reached the age of 16.

1. Proceedings concerning the first compensation
scheme

8. On 20 October 1993 the applicant applied to
the Polish-German Reconciliation Foundation (Fundacja Polsko-Niemieckie Pojednanie – “the Foundation”) for compensation on account of his
forced labour from the funds contributed by the government of the Federal
Republic of Germany under the Agreement of 16 October 1991 (see paragraphs
20-21 below). On 2 February 1994 the Foundation's Verification Commission
(Komisja
Weryfikacyjna), having regard to a document issued by the social
security authorities, established that the applicant had been subjected
to forced labour from February 1941 to January 1945 and awarded him
1,050 Polish zlotys (PLN) in compensation. This payment was granted
within the framework of the “primary payments scheme” (wypłaty podstawowe). The issue of deportation was apparently
not addressed in the decision. The applicant's subsequent appeal against
this decision was dismissed by the Appeal Verification Commission (Odwoławcza
Komisja Weryfikacyjna) on an unspecified date.

9. On an unspecified date in 1999 the Foundation's
management board (Zarząd Fundacji) adopted Resolution no. 29/99, which introduced
a deportation requirement for claimants who had been forced labourers.
The resolution also provided that those claimants who had been subjected
to forced labour as children under the age of 16 could be granted compensation
regardless of whether the deportation condition was met (see paragraph
27 below).

10. On 2 March 2000, following the adoption of
Resolution no. 29/99, the Foundation's Verification Commission granted
the applicant a supplementary payment of PLN 365. The decision on supplementary
payment related to the applicant's forced labour as a child under the
age of 16 (from April 1941 to February 1944). Thus, the period of forced
labour from March 1944 to January 1945 was not taken into account because
the deportation condition as defined in Resolution no. 29/99 had not
been met. The period of forced labour from February to March 1941 was
not acknowledged in the absence of appropriate evidence.

11. On 12 March 2000 the applicant appealed against
that decision to the Appeal Verification Commission, challenging the
amount of compensation granted. It appears that the applicant complained
that the period of his forced labour between May/June 1994 and 26 January
1945, carried out in particularly harsh conditions connected with his
relocation, was not taken into account by the Verification Commission.
Having received no reply to his appeal, the applicant made further enquiries
with the Foundation on 31 October 2000 and 3 January 2001.

12. In the meantime, the applicant had lodged
a complaint with the Ombudsman regarding the Foundation's inactivity.
On 4 April 2001 the Ombudsman informed the applicant that, regrettably,
he was not in a position to question the lawfulness of resolutions adopted
by the Polish-German Reconciliation Foundation or any other foundation.
The Polish-German Reconciliation Foundation was established in accordance
with the Foundations Act of 6 April 1984. In this particular case, the
Foundation operated under the supervision of the Minister of the State
Treasury. However, the Ombudsman could not interfere with the Foundation's
actions as long as they complied with its statute and other legal regulations.
The Ombudsman also referred to the Supreme Court's decision of 31 March
1998, which refused to recognise the Polish-German Reconciliation Foundation
as a public administration body (see paragraphs 46-47 below).

13. By a letter of 24 April 2001, the president
of the Foundation's Appeal Verification Commission informed the applicant
that, under the Foundation's internal regulations in force at the material
time (Resolution no. 29/99), only forced labourers deported to the Third
Reich or to an area occupied by the German Reich (with the exception
of the territory of occupied Poland) were eligible for compensation.
Finally, the applicant was informed that no further appeal lay against
the decision of the Appeal Verification Commission.

14. Nevertheless, on an unspecified later date,
the applicant lodged a complaint against the decision of the Appeal
Verification Commission of 24 April 2001 with the Supreme Administrative
Court (Naczelny
Sąd Administracyjny). It appears that in his complaint the applicant
also challenged Resolution no. 29/99.

15. On 14 December 2001 the Supreme Administrative
Court dismissed the applicant's complaint, considering it inadmissible
in law. It relied on Decision no. OPS 3/01, adopted by the Supreme Administrative
Court on 3 December 2001 (see paragraph 50 below).

2. Proceedings concerning the second compensation
scheme

16. On 21 November 2000 the applicant applied
to the Polish Foundation for compensation under the scheme for slave
and forced labourers (the second compensation scheme), established under
the Joint Statement of 17 July 2000, the German Law of 2 August 2000
on the creation of the Remembrance, Responsibility and Future Foundation
(“the German Foundation Act”) and the subsequent Agreement of 16
February 2001 between the Remembrance, Responsibility and Future Foundation
and the Polish-German Reconciliation Foundation (see paragraphs 29-33
and 35-36 below). On 17 April 2001 the Foundation's Verification Commission
rejected his request on the ground that he did not satisfy the deportation
requirement set out in section 11(1)2 of the German Foundation Act (see
paragraph 33 below). It appears that the applicant did not appeal against
the decision of the Verification Commission of 17 April 2001.

17. On 17 October 2001 the Polish Foundation granted
the applicant PLN 1,000 in compensation due to the fact that he had
been subjected to forced labour as a child under the age of 16. This
decision was based on Resolution no. 15/2001 of the Foundation's management
board, adopted on 16 March 2001 (see paragraph 42 below).

18. The applicant's subsequent complaints to the
Minister of the State Treasury, who acted as the supervisory authority
of the Foundation, were unsuccessful.

C. Relevant domestic and international law
and practice

1. Constitutional provisions

19. Article 9 of the Constitution, which was adopted
by the National Assembly on 2 April 1997 and came into force on 17 October
1997, states:

“The Republic of Poland shall respect international
law binding upon it.”

Article 45 § 1 of the Constitution reads:

“Everyone shall have the right to a fair and
public hearing of his case, without undue delay, before a competent,
impartial and independent court.”

Chapter III of the Constitution, entitled “Sources
of law”, refers to the relationship between domestic law and international
treaties.

Article 87 § 1 provides:

“The sources of the universally binding law
of the Republic of Poland shall be: the Constitution, statutes, ratified
international agreements, and regulations. ...”

The relevant part of Article 91 provides:

“1. After promulgation thereof in the Journal
of Laws of the Republic of Poland [Dziennik Ustaw], a ratified international agreement shall constitute
part of the domestic legal order and shall be applied directly, unless
its application depends on the enactment of a statute.

2. An international agreement ratified upon prior
consent granted by statute shall have precedence over statutes if such
an agreement cannot be reconciled with the provisions of such statutes.”

2. The Agreement of 16 October 1991 and
the establishment of the Polish-German Reconciliation Foundation (the
first compensation scheme)

20. On 16 October 1991 the governments of the
Federal Republic of Germany and the Republic of Poland concluded an
agreement on the basis of which the German government declared that,
prompted by humanitarian considerations, it was prepared to contribute
500 million German marks (DEM) for the benefit of the Polish-German
Reconciliation Foundation. The Foundation was to be established by the
government of Poland with a view to providing financial assistance to
victims of Nazi persecution who had suffered serious damage. The Foundation
was to determine the necessary criteria for the granting of compensation,
having regard to serious damage to the victims' health and to their
current financial difficulties. The government of Poland declared that
it would not pursue further individual claims by Polish citizens arising
out of Nazi persecution. Both governments indicated that their agreement
should not amount to a limitation of the rights of citizens of either
country.

21. Subsequently, on 27 November 1991, the Minister
– Head of the Cabinet's Office (Minister – Szef Urzędu Rady Ministrów), acting as a founder,
made a declaration before the State notary on the establishment of the
Foundation. He declared that, acting on the initiative of the government
of the Republic of Poland and on behalf of the State Treasury, he was
establishing the Polish-German Reconciliation Foundation. The Foundation's
aim was to provide assistance to the victims of Nazi persecution and
to undertake other activities for the benefit of those persons. The
Minister also declared that the Foundation's capital fund consisted
of DEM 500 million, contributed by the German government to the Polish
government.

22. The Polish-German Reconciliation Foundation
was established in accordance with the Foundations Act of 6 April 1984,
which regulates the activities of foundations in Poland. The Act stipulates
that individuals and legal persons may establish foundations in order
to carry out socially and economically beneficial goals which comply
with the basic interests of the Republic of Poland. In principle, supervision
of a foundation's activities is exercised by the regional governor (Wojewoda)
or the competent minister. These supervisory authorities may apply to
a court to establish whether a foundation's activities comply with its
aim, its statute and the general legislation (section 12). The competent
minister or the regional governor may also apply to the courts to quash
a resolution adopted by a foundation if it is evidently incompatible
with its aim, its statute or the general legislation (section 13).

23. The statute of the Polish-German Reconciliation
Foundation was drafted and subsequently registered by the Warsaw District
Court on 24 February 1992. On that date the Foundation began its activities.
The founder could amend the statute and decide whether the Foundation
was to go into liquidation. According to paragraph 6 of the statute,
the Foundation's primary aim was to render direct financial assistance
to those victims of Nazi persecution whose health had been seriously
damaged and who were in a difficult financial situation as a result
of that persecution.

24. The Foundation's main bodies were the supervisory
board (Rada
Nadzorcza), composed of twenty-one members, and the management
board (Zarząd),
composed of nine members. The members of those bodies were appointed
and dismissed by the founder, namely the Minister – Head of the Cabinet's
Office, who exercised full control in this respect. The two other bodies
of the Foundation were the Verification Commission (Komisja Weryfikacyjna), whose members were appointed by the
Foundation's management board, and the Appeal Verification Commission
(Odwoławcza
Komisja Weryfikacyjna), whose members were appointed by the Foundation's
supervisory board.

25. The Foundation assessed the substantive and
procedural aspects of requests for financial assistance on the basis
of its statute and the regulations drawn up by the management board
and adopted by the supervisory board. The Verification Commission was
responsible for reaching decisions on whether to grant financial assistance
to victims. Appeals against the Verification Commission's decisions
could be lodged with the Appeal Verification Commission. The latter's
decisions were to be final.

26. The financial assistance granted by the Foundation
from the funds contributed by the government of the Federal Republic
of Germany in 1992-93 was paid in two parts: a primary payment and a
supplementary payment, the latter deriving from the interest accrued
on the original contribution from the German government. On 23 May 2002
the disbursement of all those compensation payments was terminated on
the basis of Resolution no. 29/2002 of the Foundation's management board.

27. On an unspecified date in 1999 the Foundation's
management board adopted Resolution no. 29/99 which introduced a deportation
requirement. The resolution specified that only those forced labourers
who had been deported from their place of residence to the territory
of the German Reich or to territories occupied by Germany were eligible
for compensation. It stipulated that the deportation condition was not
fulfilled by those persons who had been subjected to forced labour on
the territory of Poland within that country's borders of August 1939.
In addition, Resolution no. 29/99 laid down a separate eligibility criterion
to the effect that those who had been subjected to forced labour as
children under the age of 16 could be granted compensation regardless
of whether the deportation condition was met.

28. On an unspecified date in 2001 or earlier,
the Minister of the State Treasury (Minister Skarbu Państwa) assumed the function of founder and
supervisory authority of the Foundation.

3. Compensation scheme for slave and forced
labourers (the second compensation scheme)

29. From 1998 to 2000 another set of international
negotiations took place on the issue of compensation for persons subjected
to slave or forced labour by Nazi Germany. The government of Poland
was one of the parties to these negotiations. They were prompted by
a number of lawsuits against certain German companies before the courts
in the United States in which compensation was sought on account of
forced labour during the Second World War. The German companies against
which the lawsuits had been brought wished to bring them to an end and
secure legal peace. The negotiations concluded on 17 July 2000 with
the adoption of a Joint Statement which was signed by all the parties
to the negotiations, including the government of Poland3.

30. The parties to the Joint Statement acknowledged
the intention of the government of Germany and of the German companies
concerned to accept moral and historic responsibility arising from the
use of slave and forced labourers and from other injustices committed
during the National Socialist era and the Second World War. They affirmed
their consensus of 17 December 1999 on the establishment of the Remembrance,
Responsibility and Future Foundation, which was to be a means of providing
funds for victims from central and eastern Europe, most of whom had
benefited little from prior German compensation and restitution programmes.
The parties to the Joint Statement further agreed to base their decisions
regarding distribution of funds on the eligibility criteria set out
in the German Foundation Act.

31. According to the Joint Statement, the government
of Germany and the German companies concerned undertook to contribute
DEM 5 thousand million to the Remembrance, Responsibility and Future
Foundation. The Joint Statement stipulated that the governments of the
participating central and eastern European States, including Poland,
and the government of Israel agreed to implement the necessary specific
measures within the framework of their national legal systems to achieve
legal peace.

32. Subsequently, on 2 August 2000, the German
parliament enacted the Law on the creation of the Remembrance, Responsibility
and Future Foundation. It came into force on 12 August 2000. However,
the disbursement of payments only started on 30 May 2001, once the relevant
guarantees had been secured by the German companies concerned with regard
to the dismissal of the lawsuits filed against them in the United States
courts.

33. The relevant parts of the Law on the creation of the Remembrance,
Responsibility and Future Foundation provide:

“Preamble

Recognising

that the National Socialist State inflicted severe
injustice on slave labourers and forced labourers, through deportation,
internment and exploitation, which in some cases extended to destruction
through labour, and through a large number of other human rights violations,

that German companies which participated in the
National Socialist injustice bear a historic responsibility and must
accept it,

that the companies which have come together in
the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged
this responsibility,

that the injustice committed and the human suffering
it caused cannot be truly compensated by financial payments,

that the Law comes too late for those who lost
their lives as victims of the National Socialist regime or have died
in the meantime,

the German Bundestag acknowledges political and moral responsibility for
the victims of National Socialism. The Bundestag intends to keep alive the memory of the injustice
inflicted on the victims for coming generations as well.

...

Section 1 – Establishment and headquarters

(1) A legally recognised Foundation with the name
'Remembrance, Responsibility and Future' shall be established under
public law.

...

Section 2 – Purpose of the Foundation

(1) The purpose of the Foundation is to make financial
compensation available through partner organisations to former forced
labourers and to those affected by other injustices from the National
Socialist period.

...

Section 10 – Distribution of resources
through partner organisations

(1) The approval and disbursement of one-off payments
to those persons eligible under section 11 will be carried out through
partner organisations. The Foundation is neither authorised nor obligated
in this regard. The board of trustees may opt for another mode of payment.

...

Section 11 – Eligible persons

(1) Eligible under this Law are:

1. persons who were held in a concentration camp
as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz]
or in another place of confinement outside the territory of what is
now the Republic of Austria or a ghetto under comparable conditions
and were subjected to forced labour;

2. persons who were deported from their homelands
into the territory of the German Reich within the borders of 1937 or
to a German-occupied area, subjected to forced labour in a commercial
enterprise or for public authorities there, and held under conditions
other than those mentioned in paragraph 1, or were subjected to conditions
resembling imprisonment or similar extremely harsh living conditions;

...

(2) Eligibility shall be demonstrated by the applicant
by submission of documentation. The partner organisation shall bring
in relevant evidence. If no relevant evidence is available, the claimant's
eligibility may be substantiated in some other way.”

4. Implementation of the second compensation
scheme by Poland

34. On 10 August 2000 the Polish government submitted
to Parliament a bill on exemption of payments received in connection
with Nazi persecution from tax and duties. In the written grounds of
the bill the government stated that payment of benefits on account of
forced labour for the Nazi regime had been agreed in the course of negotiations
involving the respective governments, German companies and the victims.
They further stated that, as a result of the agreement with the Germans,
Poland would receive more than DEM 1.8 thousand million. On 21 September
2000 the Polish parliament enacted the Law on exemption of payments
received in connection with Nazi persecution from tax and duties. That
Law also exempted the Polish-German Reconciliation Foundation from taxes
due on funds received by the Foundation for the distribution of payments.
It came into force on 17 November 2000.

35. On 16 February 2001 an agreement was concluded
between the Remembrance, Responsibility and Future Foundation and the
Polish-German Reconciliation Foundation. Under its terms the Polish-German
Reconciliation Foundation was to act as a partner organisation of the
German Foundation, with a view to securing prompt disbursement of compensation
payments to slave and forced labourers (paragraph 1 of the agreement).
Both parties agreed to implement fully the provisions of the German
Foundation Act and declared that their agreement was in compliance with
the Joint Statement of 17 July 2000.

36. The above agreement further stipulated that
the Polish Foundation, as a partner organisation, was entrusted with
determining eligibility for compensation payments in respect of all
claimants who resided on the territory of Poland as of 16 February 1999
(paragraph 2). The partner organisation was to verify and determine
whether the relevant conditions for awarding payment had been established
or substantiated in some other way (paragraph 5.1). A claimant could
appeal against a decision taken by the partner organisation in respect
of the grounds of the decision or the amount of compensation awarded
before an independent appeal body established within the partner organisation
(paragraph 5.5). According to paragraph 6.3 of the agreement, decisions
taken by the appeal body were final and could not be challenged before
a court (paragraph 3).

37. The Agreement of 16 February 2001 was accompanied
by three annexes. Annex no. 3 contained a declaration by the Polish
government with regard to responsibility for the disbursement of compensation
payments. The relevant parts provide:

“Since 1998 the government of the Republic
of Poland has made exceptionally concerted efforts to secure payment
of compensation for slave and forced labour imposed by Nazi Germany.
In the negotiations, the government has played a significant role on
behalf of the representatives of the victims. Due to the government's
efforts, former slave and forced labourers will receive in total DEM 1,812
thousand million, which constitutes a very positive outcome to the negotiations.

The government of the Republic of Poland will
endeavour to ensure that the payments from the Remembrance, Responsibility
and Future Foundation, handled by the Polish-German Reconciliation Foundation
with the participation of Polish financial institutions, will be processed
properly. To that end the Polish authorities will take steps with regard
to the Polish-German Reconciliation Foundation within their founding
and supervisory competences.”

38. The statute of the Polish-German Reconciliation
Foundation was amended on the initiative of its founder, namely the
Minister of the State Treasury, with a view to implementing the provisions
of the German Foundation Act and the Agreement of 16 February 2001;
those amendments were subsequently registered by the Warsaw District
Court on 26 June 2001.

39. The amended statute stipulated that the Foundation
was to disburse compensation payments to the victims specified in section
11 of the German Foundation Act from the funds contributed by the Germans
on the basis of the same Act (paragraphs 6.2 and 9.2)4.
It further specified that the Foundation's decisions in individual cases
were to be taken on the basis of internal regulations. A decision in
an individual case could be appealed against; however, a decision taken
after an appeal had been considered was final and no appeal lay against
it (paragraphs 6.4 and 6.5).

40. Pursuant to paragraph 20 of the amended statute,
the Verification Commission was to determine individual claims for assistance
filed by victims of Nazi persecution. Members and the president of the
Verification Commission were to be appointed and dismissed by the Foundation's
management board (paragraph 21.1). Detailed regulations as to the organisation
of the Verification Commission and the rules and criteria on the granting
of assistance were specified in the internal regulations of the Verification
Commission, drafted by the management board and adopted by the supervisory
board (paragraph 21.2).

41. Decisions taken by the Verification Commission
could be appealed against to the Appeal Verification Commission. Its
president and members are appointed and dismissed by the Foundation's
management board, having consulted the supervisory board. The Appeal
Verification Commission operates on the basis of internal regulations
drafted by the management board and adopted by the supervisory board
(paragraph 23.2). The amended statute stipulated that the decisions
of the Appeal Verification Commission were final (paragraph 23.3).

42. On 16 March 2001 the management board of the
Polish-German Reconciliation Foundation adopted Resolution no. 15/2001
with a view to providing compensation to certain categories of claimants
who were not eligible under the criteria laid down in the German Foundation
Act. Under that resolution, the Foundation decided to allocate PLN 40
million from its own funds and 10 million United States dollars from
the London Gold Fund (Victims of Nazi Persecution Fund), received by
the Polish government from the government of the United States of America,
to those claimants who had been subjected to forced labour as children
under the age of 16 at their place of residence (that is to say, without
the deportation requirement being met).

5. Case-law of the Polish courts

43. In a decision of 12 January 1993 (no. I SA
1762/92), the Supreme Administrative Court stated that:

“A foundation is not a civic organisation and
therefore, in accordance with the Code of Administrative Procedure,
it is not possible to delegate to a foundation power to determine individual
cases by way of administrative decisions.”

Consequently, a foundation's decisions cannot
be appealed against to the Supreme Administrative Court.

44. In a decision of 12 March 1993 (no. I ACr
133/93), the Warsaw Court of Appeal (Sąd Apelacyjny) held that:

“The Foundation's aims in respect of its capital
fund, which are determined in the Foundation's statute, do not create
rights for other persons vis-à-vis the capital fund. Lack of legal protection for the
entitlements of particular persons to receive benefit from the Foundation
implies that a claim raised in this respect is not a civil one, and
accordingly the jurisdiction of the [civil] courts is excluded.”

45. In 1997 the Ombudsman referred to the Supreme
Court a question of law (pytanie prawne), as to whether decisions given by the bodies
of the Foundation could be appealed against to the Supreme Administrative
Court and, if not, whether they were subject to judicial review in civil
proceedings. The Ombudsman relied, inter alia, on Article 45 of the Constitution and Article 6
§ 1 of the Convention. In particular, the Ombudsman asked the Supreme
Court to consider the following issues:

(a) whether there was any legal provision excluding
judicial review if a dispute arose between an individual and the Foundation;

(b) whether the Foundation could be regarded as
a body performing functions in the area of public administration, given
that it served public aims with the use of public resources;

(c) whether Article 1 § 2 and Article 5 § 2
(3) of the Code of Administrative Procedure constituted sufficient grounds
to conclude that it could not perform any functions in the area of public
administration;

(d) whether the assessment of facts and law established
by the Foundation also had a bearing on the claimant's relationship
with the Director of the Veterans and Persecuted Persons Office;

(e) whether the decision to award or refuse to
award compensation was not a purely technical act, since it was always
preceded by a legal assessment of an individual case.

46. On 31 March 1998 the Supreme Court (Sąd Najwyższy) adopted Decision no. III ZP 44/97, holding
that, since administrative functions could only be delegated by a statute,
which was not the case with regard to the Polish-German Reconciliation
Foundation, its decisions did not meet the requirements of an administrative
decision and thus could not be challenged before the Supreme Administrative
Court. However, the Supreme Court refused to give a definite answer
to the question whether the Foundation's decisions were subject to judicial
review in civil proceedings. It nevertheless observed that entitlement
to receive a benefit from the Foundation did not fall within the scope
of civil law, and thus could not be raised before a civil court. In
exceptional cases, such as where the claimant's eligibility was established
but the benefit had not been paid, a claim could arise under civil law.

47. The Supreme Court considered that the fact
that the Foundation's aims were the same as the aims which were to be
achieved by the public authorities would not justify the conclusion
that the Polish-German Reconciliation Foundation performed functions
in the area of public administration. Similarly, the manner in which
the Foundation had been established and the nature of its tasks, common
– in the Supreme Court's view – to all foundations, could not support
the above conclusion.

“The Polish-German Reconciliation Foundation
does not perform any functions in the area of public administration,
in that there is no legal provision giving it the competence to do so.
It follows that, in view of the lack of statutory authority, decisions
granting or refusing to grant compensation to a victim of the Nazi regime
are not administrative decisions and cannot be challenged before the
Supreme Administrative Court.”

49. In a decision of 5 October 2001 (no. III CZP
46/01), the Supreme Court ruled that a plaintiff's claim seeking recognition
of the fact that he had been subjected to forced labour during the Second
World War could not be examined by a (civil) court. The Supreme Court
considered that the awarding of compensation by the Foundation did not
create an individual right of a contractual nature. The Foundation decided
whether the eligibility conditions for the granting of a payment were
established. Thus, according to the Supreme Court, the Foundation was
not a debtor vis-à-vis the claimants, but acted as a decision-making body.
The Foundation's decisions merely created a legal basis for the awarding
of compensation. The above situation did not, therefore, resemble civil-law
relations.

50. In a decision of 3 December 2001 (no. OPS
3/01), the Supreme Administrative Court confirmed the earlier case-law
to the effect that it did not have jurisdiction to review the decisions
of the Foundation and observed:

“The Polish-German Reconciliation Foundation,
which awards benefits to the victims of Nazi persecutions using the
financial resources allocated to it by foreign entities, does not perform
functions in the area of public administration. Thus, the source of
the entitlement to receive an award from the Foundation does not stem
from acts of the public administration.”

It further observed:

“There is no doubt that the Agreement of 16
October 1991 concluded between the Polish and German governments, which
was not ratified, as well as subsequent acts [starting with the Joint
Statement and the German Foundation Act] concerning grants of financial
assistance by the Foundation on account of Nazi persecution do not fulfil
the criteria which would make it possible to classify them as sources
of binding Polish law. No administrative-law relation arises between
a claimant and the Foundation on the basis of the aforementioned acts,
and consequently the Foundation is not an organ of public administration
established by law to determine cases in the sphere of public administration.”

COMPLAINT

51. The applicant complained, without relying
on any of the Convention Articles, that the Foundation's decisions,
partly refusing to grant him compensation in respect of his forced labour,
were unfair and that these decisions could not be appealed against to
any other competent body. The applicant alleged in substance that he
was deprived of the right of access to a court.

THE LAW

52. The applicant complained of the Polish-German
Reconciliation Foundation's decisions partly refusing to grant him compensation.
He further alleged, in substance, that he did not have access to a court
in respect of the Foundation's decisions in his case. The Court considers
that the applicant's complaint falls to be examined under Article 6
§ 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ...”

A. Responsibility of the Polish State

53. As a preliminary issue, the Court has to determine
whether Poland's responsibility under the Convention is engaged in respect
of the acts of the Polish-German Reconciliation Foundation.

1. The parties' submissions

54. The Government argued that the Foundation
was not a governmental agency. It was a fully independent entity operating
under private law, and the State could not be held responsible for its
actions or decisions concerning individual applications for financial
assistance. The Government submitted that supervisory functions exercised
by the public authorities were limited to the examination of whether
the Foundation's activities complied with its aims, its statute and
the applicable legislative provisions. According to the Government,
it could not be overlooked that State supervision of foundations was
limited only to their bodies, whereas neither the founder nor the recipients
of financial assistance were subject to any supervision by the State
authorities.

55. The Government further submitted that two
separate periods should be distinguished in the Foundation's activities.
The first period began in 1991 with the establishment of the Foundation
and ended in 2000, when the international agreement regarding compensation
schemes for slave and forced labourers was concluded.

56. Having regard to the Agreement of 16 October
1991, the Government contended that in the first period of its activities
the Foundation was fully authorised to define its own rules for awarding
financial assistance to the victims of Nazi persecution. The rules adopted
by the Foundation were exclusively a matter for its internal regulations,
and any possibility of reviewing those rules was reserved solely for
the Foundation's supervisory authority, which could apply to the courts
to have a resolution adopted by the Foundation quashed. The Government
further submitted that the Verification Commission and the Appeal Verification
Commission were entirely independent from the Foundation's management
board and the supervisory board. In addition to the right to lodge an
appeal against the Verification Commission's decision, every person
concerned had a right to lodge a complaint with the minister responsible
for supervising the Foundation.

57. The second period in the Foundation's activities
started in 2001, when the Polish-German Reconciliation Foundation began
to operate as the “partner organisation” of the German Remembrance,
Responsibility and Future Foundation. The Government contended that
the legal and financial framework for voluntary payments by the German
government and German industry had been established on the basis of
the Joint Statement of 17 July 2000 and the German Foundation Act. The
German Foundation Act contained specific rules on eligibility for compensation
payments and the division of funds among partner organisations.

58. The Government argued that both the Joint
Statement and the German Foundation Act, which had been negotiated over
a period of two years, constituted an integral whole. Further, they
contended that Poland, like all the other signatories to the Joint Statement,
could not apply its own regulations departing from the scheme, which
was binding on all the parties to the agreement. The parties to this
agreement, when making compensation payments to eligible persons, undertook
to follow the criteria set out in the Foundation Act. The Government
underlined that, consequently, the Polish-German Reconciliation Foundation,
as one of the partner organisations, could not introduce its own rules
for compensation payments.

59. The applicant argued that the Polish State
was responsible for the acts of the Polish-German Reconciliation Foundation.
He maintained that the government had established the Foundation and
entrusted it with its tasks. The applicant also submitted that members
of the Foundation's management board were appointed and dismissed by
the government and that the Minister of the State Treasury supervised
the Foundation's operations.

2. The Court's assessment

(a) Principles deriving from the Court's case-law

60. The Court has consistently held that the responsibility
of a State is engaged if a violation of one of the rights and freedoms
defined in the Convention is the result of non-observance by that State
of its obligation under Article 1 to secure those rights and freedoms
in its domestic law to everyone within its jurisdiction (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, judgment of
13 August 1981, Series A no. 44, p. 20, § 49). Article 1 makes no distinction
as to the type of rule or measure concerned and does not exclude any
part of the member State's “jurisdiction” from scrutiny under the
Convention (see United Communist Party of Turkey and Others v. Turkey, judgment
of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29).
Furthermore, the State cannot absolve itself from responsibility ratione personae
by delegating its obligations to private bodies or individuals (see, mutatis mutandis, Costello-Roberts
v. the United Kingdom, judgment of 25 March 1993, Series A no.
247-C, p. 58, § 27). The undertakings given by a Contracting State
under Article 1 of the Convention include, in addition to the duty to
refrain from interfering with the enjoyment of the rights and freedoms
guaranteed, positive obligations to take appropriate steps to ensure
respect for those rights and freedoms within its territory (see, among
other authorities, Z and Others v.the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).

(b) Application of the above principles to
the present case

(i) General considerations

61. The Court accepts the argument advanced by
the Government that two separate periods should be distinguished in
the Foundation's operations. However, it finds that, for the purposes
of State responsibility for the Foundation's acts under the Convention,
the distinction proposed by the Government, although not without relevance,
is not conclusive.

(α) The first compensation scheme

62. The Court observes that the Polish-German
Reconciliation Foundation was established in 1991 in implementation
of the Agreement of 16 October 1991 concluded between the governments
of the Republic of Poland and the Federal Republic of Germany. The Foundation
was established by the Minister – Head of the Cabinet's Office (the
founder), acting on the initiative of the government of Poland and on
behalf of the Polish State Treasury. It is true that, in a formal sense,
the Foundation is a private-law entity operating under the Foundations
Act of 6 April 1984. However, it cannot be overlooked that the very
existence of the Foundation was brought about by the action of a government
minister in implementation of a bilateral agreement negotiated and co-formed
by the representatives of the Polish government. Furthermore, the Foundation's
statute was drawn up by the government minister who acted as founder.
The Court also notes that the founder could decide whether the Foundation
went into liquidation.

63. The Court notes that the tasks with which
the Foundation was originally entrusted stemmed from the bilateral Agreement
of 16 October 1991, which had been freely entered into by Poland. The
Court recognises the specific character of the obligations undertaken
by the Polish State under that agreement, namely to establish a body
which would assess compensation claims by Polish citizens who had been
persecuted under the Nazi regime and to distribute compensation payments
provided for that purpose by the other party to the agreement. In the
Court's view, the respondent Government had consented under the Agreement
of 16 October 1991 to delegate these obligations to a body operating
under private law. Thus, they established the Polish-German Reconciliation
Foundation, a body exercising quasi-public functions, and entrusted
it with the obligations arising out of the international agreement.

64. It is of significance that the Agreement of
16 October 1991 contained only a general clause to the effect that the
Foundation's capital fund would be distributed among those victims of
Nazi persecution who had been particularly wronged. The Court notes
that, under the agreement, the Foundation was to define the necessary
conditions for awarding compensation, namely, serious harm to a claimant's
health and his or her current financial difficulties. These conditions
were subsequently transposed into the Foundation's statute and reflected
in the internal regulations adopted by the Foundation. It is apparent
that the Agreement of 16 October 1991 specified only general requirements
for the awarding of compensation by the Foundation, while leaving a
substantial degree of regulatory powers to the Foundation in respect
of the specific eligibility criteria and procedural rules to be applied.
The Court notes that the power to regulate granted to the Foundation
was considerable and has been extensively used, as evidenced, inter alia, by Resolution no. 29/99 introducing the deportation
requirement.

(β) The second compensation scheme

65. The Court observes that the respondent State
was a party to international negotiations which led to the adoption
of the legal acts governing the operation of the second compensation
scheme. The Court cannot but note that during these negotiations the
government of Poland entered into commitments which were subsequently
made binding on the Polish-German Reconciliation Foundation. Thus, the
Government recognised, at least implicitly, that they were able to exercise
a measure of control over the Foundation. The Court also notes the grounds
of the governmental bill on exemption of payments received in connection
with Nazi persecution from tax and duties, and the content of Annex
no. 3 to the Agreement of 16 February 2001, in which the government
of Poland stated that it would oversee the process of disbursement of
compensation payments by the Polish-German Reconciliation Foundation.

66. The Court also notes that, according to section
10 of the German Foundation Act, the Polish-German Reconciliation Foundation,
as one of the partner organisations, was entrusted with evaluation of
the compensation claims and disbursement of compensation payments to
eligible claimants. In addition, this provision stipulated that the
Remembrance, Responsibility and Future Foundation was neither authorised
nor obligated in respect of the approval and disbursement of compensation
payments by the partner organisations. Thus, for practical purposes,
decisions to grant compensation were taken by the Polish-German Reconciliation
Foundation. Admittedly, the basic eligibility criteria were determined
in the German Foundation Act and as such they fell outside the jurisdiction
of the respondent State. However, they were agreed upon by the government
of Poland in the course of the international negotiations which preceded
the enactment of the German Foundation Act. In any event, the proximate
cause of the Foundation's operation was, during both periods, an international
agreement to which Poland was a party.

67. Furthermore, with regard to Resolution no.
15/2001 of 16 March 2001 by the Foundation's management board, the Court
notes that certain funds received by the government of Poland from the
government of the United States of America in the framework of the Victims
of Nazi Persecution Fund were subsequently allocated directly by the
former to the Polish-German Reconciliation Foundation.

(γ) As regards both compensation schemes

68. The Court attaches importance to the manner
in which the governing and adjudicating bodies of the Foundation were
created. It notes in particular that the founder (a government minister)
was empowered under the statute to appoint and dismiss at his discretion
all members of the Foundation's supervisory board and management board,
which in turn were given responsibility for adopting the Foundation's
internal regulations. The management board was responsible for the appointment
and dismissal of the Verification Commission, while the supervisory
board had parallel powers in respect of the Appeal Verification Commission.
Furthermore, a certain degree of control and supervision over the Foundation
was exercised by the Minister of the State Treasury. The Court considers
that, by way of the above arrangements, the government had at its disposal
substantial means of influencing the Foundation's operations.

69. The Court notes that, according to the interpretation
adopted by the domestic courts, the Foundation is not a public administration
body and does not perform functions in the area of public administration
(see paragraph 50 above). Furthermore, the domestic courts ruled that
administrative functions could be delegated only by a statute, which
was not the case with regard to the Foundation (see paragraph 46 above).
Consequently, the Foundation's decisions in individual cases could not
be reviewed by the Supreme Administrative Court. In this connection,
the Court reiterates that it is not its task to substitute itself for
the domestic jurisdictions. It is primarily for the national authorities, notably the
courts, to resolve problems of interpretation of domestic legislation.
The Court's role is confined to ascertaining whether the effects of
such an interpretation are compatible with the Convention (see, inter alia, Waite and Kennedy
v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I).

70. Having regard to the above-mentioned case-law of the domestic courts,
the Court observes that their findings excluded the jurisdiction of
the Polish courts in respect of reviewing individual decisions by the
Foundation's bodies on compensation payments. It is not for the Court
to call into question that this was a correct interpretation of Polish
law applicable to foundations in general. At the same time, however,
the respondent State, which had established the Foundation and entrusted
it with the administration of both compensation funds, decided to exclude
access to the courts in these matters. Against this background, the
reasoning of the domestic courts in their decisions concerning the domestic
status of the Foundation are not capable of ruling out entirely State
responsibility under the Convention. It follows that the application
cannot be rejected as incompatible ratione personae with the provisions of the Convention
within the meaning of Article 35 § 3.

(ii) Conclusion

71. Having regard to the above general considerations,
the Court is of the view that it cannot be said that the State exercised
a pervasive influence in the daily operations of the Polish-German Reconciliation
Foundation. It did not have direct influence over the decisions taken
by the Foundation in respect of individual claimants; however, the State's
role was crucial in establishing the overall framework within which
the Foundation operated.

72. The Court considers that the fact that a State
chooses a form of delegation in which some of its powers are exercised
by another body cannot be decisive for the question of State responsibility ratione personae.
In the Court's view, the exercise of State powers which affects Convention
rights and freedoms raises an issue of State responsibility regardless
of the form in which these powers happen to be exercised, be it for
instance by a body whose activities are regulated by private law. The
Convention does not exclude the transfer of competences under an international
agreement to a body operating under private law provided that Convention
rights continue to be secured (see, mutatis mutandis, Matthews v. the United Kingdom [GC], no. 24833/94, § 32, ECHR
1999-I). The responsibility of the respondent State thus continues even
after such a transfer.

73. The Court observes that the respondent State
has decided to delegate its obligations arising out of international
agreements to a body operating under private law. In the Court's view,
such an arrangement cannot relieve the Polish State of the responsibilities
it would have incurred had it chosen to discharge these obligations
itself, as it could well have done (see, mutatis mutandis, Van der Mussele v. Belgium, judgment of 23 November 1983, Series
A no. 70, pp. 14-15, §§ 28-30; and Costello-Roberts, cited above, p. 58, § 27). It should be
recalled in this respect that the Convention is intended to guarantee
rights that are not theoretical or illusory, but rights that are practical
and effective (see Matthews, cited above, § 34).

74. In conclusion, having regard to all the above
considerations, the Court considers that the specific circumstances
of the present case give rise to the conclusion that the actions of
the Polish-German Reconciliation Foundation in respect of both compensation
schemes are capable of engaging the responsibility of the State.

B. Applicability of Article 6 § 1 of the Convention

1. The parties' submissions

75. The Government claimed that the proceedings
in which the applicant had been involved did not concern the determination
of his civil rights and obligations. They noted that the Polish authorities
have never accepted an obligation to redress the wrongs inflicted on
Polish citizens by Nazi Germany. The Government further stressed that
the Polish-German Reconciliation Foundation had no obligation to compensate
victims of the Nazi regime, since it was not a successor to those entities
that had violated the rights of Polish citizens. Furthermore, they argued
that the nature and scope of payments granted by the Polish-German Reconciliation
Foundation did not allow them to be considered as falling within the
scope of civil law. The Government maintained that the payments granted
by the Foundation were based on moral grounds and were of a humanitarian
nature. As such, they could not be associated with the classic civil-law
concept of damages adopted in Polish or German law.

76. The Government observed that, in the first
period of the Foundation's activities (1991-2000), relations between
the Foundation and the claimants were not based on an equal footing.
During that period the Foundation was exclusively competent to establish
the eligibility criteria and to make decisions on awarding financial
assistance. Consequently, any proceedings in the relevant period were
strictly internal and any assistance granted by the Foundation was of
a humanitarian nature. In the Government's view, this excluded the possibility
that a right to claim financial assistance from the Foundation came
under the scope of the civil law. In respect of the second compensation
scheme, the Government maintained that payments granted under that scheme
concerned “voluntary financial payments by the government of the Federal
Republic of Germany and German industry”.

77. The applicant contended that Article 6 §
1 of the Convention was applicable to the proceedings in his case.

2. The Court's assessment

78. The Court notes at the outset that the applicant's
claims before the Polish Foundation and the ensuing proceedings concerned
two distinct compensation schemes. Consequently, the issue of the applicability
of Article 6 § 1 of the Convention should be examined separately in
respect of each of the compensation schemes.

(a) The first compensation scheme

(i) Principles deriving from the Court's case-law

79. The Court reiterates that, according to the
principles laid down in its case-law, it must first ascertain whether
there was a “dispute” (“contestation”) over a “right” which can be said, at least
on arguable grounds, to be recognised under domestic law, irrespective
of whether this “right” is also protected under the Convention (see, inter alia, Neves e Silva
v. Portugal, judgment of 27 April 1989, Series A no. 153-A, p.
14, § 37). The dispute must be genuine and serious; it may relate not
only to the actual existence of a right but also to its scope and the
manner of its exercise. The outcome of the proceedings must be directly
decisive for the right in question (see, among other authorities, Athanassoglou
and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV,
and Mennitto
v. Italy [GC], no. 33804/96, § 23, ECHR 2000-X). Lastly, the
right must be a “civil” right.

(ii) Application of the above principles to
the proceedings in issue

(α) General considerations

80. The Court considers that under the Convention
there is no general obligation for States to compensate wrongs inflicted
in the past under the general cover of State authority. Consequently,
substantive regulations which determine the eligibility criteria for
any such compensation would, in principle, fall outside the Court's
jurisdiction, unless the relevant criteria were established in a manner
which was manifestly arbitrary or blatantly inconsistent with the fundamental
principles of the Convention. Referring to the facts of the present
case, the Court observes that it is not necessary to decide how much
appreciation was left to the Polish State in determining the eligibility
criteria for the compensation payments. Even assuming that determining
eligibility criteria in order to compensate damage originating from
the distant past does not in principle raise questions under the substantive
provisions of the Convention, it cannot be excluded that some procedural
issues related to the correct application of these eligibility criteria
to individual cases would arise. In so far as the substantive rules
determining the scope of claimants' entitlement to compensation payments
could amount to property rights or legitimate expectations on the part
of beneficiaries, a question could arise as to whether, in practice,
the Foundation's bodies ensured correct application of the substantive
provisions, with due regard to the requirements of Article 6 § 1 of
the Convention.

(β) Existence of a dispute over a right

81. The Court notes firstly that the applicant's
original claim for compensation of 20 October 1993 was granted by way
of the decision of 2 February 1994 in respect of the overall period of
his forced labour (from February 1941 to January 1945) and without any
consideration being given to the deportation requirement. Following
amendments to the eligibility criteria introduced by the Foundation's
Resolution no. 29/99, the applicant received a supplementary compensation
payment, but only in respect of his forced labour between April 1941
and February 1944 and on the ground that he had performed forced labour
as a child under the age of 16. The period of his forced labour from
March 1944 onwards was not taken into account for the purposes of granting
him the supplementary compensation, as the deportation requirement was
not met. Thus, it could be said that a dispute arose between the applicant
and the Foundation in respect of the right to receive compensation for
the overall period of his forced labour. The dispute concerned the amount
of compensation and the issue of eligibility for the awarding of compensation
on account of his forced labour; the applicant considered that the deportation
requirement was not a relevant factor in the assessment of his compensation
claim.

82. The Court considers that the dispute over
the applicant's entitlement to compensation, and in particular its scope,
was genuine and of a serious nature. In its view, it could not be said
that the applicant's claim was frivolous or vexatious or otherwise lacking
in foundation. The outcome of the relevant proceedings was decisive
since it concerned the scope of the applicant's right to obtain compensation
in respect of the overall period of his forced labour.

83. With regard to the issue of whether the right
to compensation from the Foundation on account of Nazi persecution was
recognised, at least on arguable grounds, under domestic law, the Court
notes that the relevant Foundation's regulations defined the conditions
and procedures with which a claimant had to comply before compensation
could be awarded by the Foundation. Those regulations, regardless of
their characterisation under domestic law, could be considered to create
a right for a victim of Nazi persecution to claim compensation from
the Foundation. Accordingly, if a claimant complied with the eligibility
conditions stipulated in those regulations, he had a right to be awarded
compensation by the Foundation (see, mutatis mutandis, Rolf Gustafson v. Sweden, judgment of 1 July 1997, Reports 1997-IV, pp. 1160-61, § 40). Thus, it cannot be said
that the relevant Foundation's regulations gave rise to an ex gratia compensation claim.

84. The Court considers that the applicant could
claim, at least on arguable grounds, the right to receive compensation
from the Foundation in respect of the overall period of his forced labour.
This was so especially since he had already received one instalment
of compensation (the primary payment) by virtue of the decision of 2
February 1994, so that he could have been led to believe that he did
indeed have such a right. That decision attested that the applicant
had sustained serious damage to his health and was currently in a difficult
financial situation as a result of Nazi persecution.

85. The Court accepts the Government's position
that the right to receive compensation on account of Nazi persecution
from the Polish-German Reconciliation Foundation does not in any way
imply that the Polish State or, for that matter, the Foundation as such
has any obligation to redress the wrongs inflicted by the Nazi regime.

86. In conclusion, the Court finds that the Foundation's
competent bodies had thus to determine a dispute concerning a right
claimed by the applicant.

(γ) Whether the disputed right was a civil one

87. As to the “civil” character of the right
asserted by the applicant, the Court reiterates that the concept of
“civil rights and obligations” is not to be interpreted solely by
reference to the respondent State's domestic law. Article 6 § 1 of
the Convention applies irrespective of the status of the parties, the
character of the legislation which governs how the dispute is to be
determined and the character of the authority which is invested with
jurisdiction in the matter (see, among other authorities, Georgiadis v. Greece, judgment of 29 May 1997, Reports 1997-III, p. 959, § 34). In ascertaining whether
a case concerns the determination of a civil right, only the character
of the right in issue is relevant (see König v. Germany, judgment of 28 June 1978, Series A no. 27,
p. 30, § 90).

88. The Court observes that there was no specific
legislation in the respondent State governing entitlement to the compensation
in issue, with the exception of the law exempting such payments from
taxation. However, the relevant regulations were broadly defined in
the Agreement of 16 October 1991 and subsequently incorporated and defined
more precisely in the Foundation's statute and its internal regulations.
In those circumstances, the Court is satisfied that there was a specific
legal framework governing the eligibility for compensation claims and
the relevant procedures.

89. The Court is not persuaded by the Government's
arguments that the compensation claims in issue were not based on classic
concepts of civil-law liability but that they were of a humanitarian
nature. On this point the Court is of the opinion that the applicant
could attempt to bring his civil claims for any damage he had sustained
on account of Nazi persecution before a German court. However, the Government
furnished no information regarding any such claims being successfully
asserted before the German courts. Furthermore, no such claim arising
out of forced labour imposed by the Nazi regime could be brought before
the German courts following the enactment of the German Foundation Act
(see also the decision of the German Federal Constitutional Court of
7 December 2004, EuGRZ 2005, pp. 56-63).

90. Similarly, having regard to the autonomous
nature of the concept “civil rights and obligations”, the Court
does not find conclusive the findings of the domestic courts to the
effect that compensation claims asserted against the Foundation did
not come within the scope of civil law (see paragraphs 44 and 46 above).

91. The Court notes that in Salesi v. Italy (judgment of 26 February 1993, Series A no.
257-E, pp. 59-60, § 19) it found Article 6 § 1 of the Convention applicable
to proceedings concerning entitlement to welfare allowance. The Court
considers that there are similarities between the entitlement to welfare
allowance and the entitlement to receive compensation from the Polish-German
Reconciliation Foundation, regard being had in particular to the eligibility
criteria of a claimant's financial difficulties and severe damage to
his health as a result of Nazi persecution.

92. With reference to the above-mentioned judgment,
the Court observes that in the present case the applicant was not affected
in his relations with the Foundation, acting in the exercise of its
discretionary powers. Rather, the applicant suffered an interference
with his means of subsistence and was claiming an individual, economic
right flowing from specific rules laid down in the Foundation's statute
and internal regulations (see, mutatis mutandis, Salesi, loc. cit., and Mennitto, cited above, § 28). Thus, the Court is of the view
that the right to claim compensation on account of Nazi persecution
from the Polish-German Reconciliation Foundation can be considered “civil”
for the purposes of Article 6 § 1 of the Convention.

93. For the above reasons the Court finds that
the right to compensation asserted by the applicant under the first
compensation scheme is a civil right within the meaning of Article 6
§ 1 of the Convention, which is thus applicable.

(b) The second compensation scheme

94. With regard to the proceedings concerning
the applicant's claims under the second compensation scheme (the slave
and forced labourers' scheme), the Court notes that the applicant has
not demonstrated that he lodged an appeal with the Appeal Verification
Commission against the decision of the Foundation's Verification Commission
of 17 April 2001. In those circumstances, the Court considers that it
is not necessary to examine the issue of the applicability of Article
6 § 1 of the Convention to the proceedings concerning the second compensation
scheme.

95. It follows that this part of the application
relating to the proceedings under the second compensation scheme is
inadmissible for non-exhaustion of domestic remedies within the meaning
of Article 35 § 1 of the Convention and must be rejected pursuant to
paragraph 4 of that Article.

C. Compliance with Article 6 § 1 of the Convention
in respect of the proceedings concerning the first compensation scheme

1. The parties' submissions

96. The Government submitted that the right of
access to a court was not absolute, and referred to the principles established
in the Court's case-law. They argued that the restrictions on access
to a court imposed in the applicant's case were not in breach of Article
6 § 1 of the Convention. They stressed that the compensation payments
granted by the Polish-German Reconciliation Foundation at any given
time could not be compared with an award of damages. The Government
submitted that the compensation payments in issue were voluntary and
a form of humanitarian assistance to individuals who, as a result of
Nazi persecution, had lost their health and were in a difficult financial
situation. Taking into consideration the nature of the payments made
by the Foundation, the Government maintained that the possibility of
ensuring judicial review of these acts had to be excluded. The Government
argued that, nevertheless, the nature of the payments did not undermine
the right of claimants to have their applications fairly examined by
the Foundation, including through a right of appeal.

97. The applicant did not specifically address
this question in his observations.

2. The Court's assessment

98. As far as compliance with Article 6 § 1 of
the Convention in respect of the applicant's claims under the first
compensation scheme is concerned, the Court considers, in the light
of the parties' submissions, that the application raises serious issues
of fact and law under the Convention, the determination of which requires
an examination of the merits. No other ground for declaring the application
inadmissible has been established.

For these reasons, the Court

unanimously

Declares admissible without prejudging the merits, the applicant's
complaint under Article 6 § 1 of the Convention that he did not have
access to a court in respect of his claims raised before the Polish-German
Reconciliation Foundation under the first compensation scheme;

by a majority

Declares inadmissible the remainder of the application.

1. Treaty of 14 November 1990 on confirmation of the existing
border between the Federal Republic of Germany and the Republic of Poland.

2. Treaty of 17 June 1991 on good neighbourliness and
friendly cooperation.

1. The other parties being the governments of the Federal Republic of
Germany, the United States of America, the Republic of Belarus, the
Czech Republic, the State of Israel, the Russian Federation and Ukraine,
and the Foundation Initiative of German Industry, the Conference on
Jewish Material Claims against Germany and a number of counsels representing
individual plaintiffs in cases brought before the courts in the United
States.

4. The Polish-German Reconciliation Foundation was also
entrusted with the disbursement of payments on the basis of a similar
scheme enacted by the Austrian parliament for the benefit of those slave
and forced labourers who had worked on the territory of present-day
Austria.